LISA A. REID v. JEFFREY WAYNE CLARK
Annotate this Case
Download PDF
RENDERED: October 1, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000409-MR
LISA A. REID
APPELLANT
APPEAL FROM NELSON CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NO. 97-CI-00116
v.
JEFFREY WAYNE CLARK
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order changing
physical custody of the parties’ child to the father in the event
the mother, who formerly had physical custody under the
separation agreement, moves to Texas.
We believe the facts in
this case are indistinguishable from those in Mennemeyer v.
Mennemeyer, Ky. App., 887 S.W.2d 555 (1994).
Thus, we reverse
that portion of the order which prohibited the mother from taking
the child to Texas.
Appellant, Lisa Reid, and appellee, Jeffrey Clark, were
married in Texas in 1993.
Thereafter, Lisa moved from Texas to
Louisville, Kentucky, to join Jeffrey, who has family in
Kentucky.
The couple subsequently moved to Nelson County,
Kentucky, where Jeffrey’s family is from.
On October 25, 1995,
Lisa gave birth to the parties’ only child, Nina Leigh Clark.
On
March 12, 1997, Lisa filed for divorce in the Nelson Circuit
Court.
After filing for divorce, Lisa and Nina moved to
Louisville, while Jeffrey remained in Nelson County.
On November 19, 1997, the parties executed a settlement
agreement which provided the following with regard to custody of
Nina:
1. The parties acknowledge and state that
each is a fit and proper custodian for the
parties’ child, but that the best interests
of the child are served by the Petitioner,
Lisa Clark, being the primary custodial
parent.
The settlement agreement also required Jeffrey to pay child
support and provided that Jeffrey would have visitation according
to the Local Rules of the Nelson Circuit Court, which sets
visitation on alternating weekends, one day during the alternate
week, on certain holidays, and certain vacation periods.
On
January 13, 1998, the decree of dissolution was entered which
incorporated the parties’ separation agreement.
Subsequently, Lisa informed Jeffrey that she intended
to move to Texas with Nina in order to accept a better paying job
and to be near her family.
After Jeffrey had obtained a
temporary injunction prohibiting Lisa from taking Nina to Texas
until a hearing thereon could be held, the parties entered into
an agreed order on April 13, 1998, requiring Lisa to notify
Jeffrey sixty (60) days in advance if she planned to move to
-2-
Texas with Nina.
On June 4, 1998, Lisa informed Jeffrey that she
was planning to move to Texas with Nina.
Jeffrey filed a motion
opposing the move with the child, asserting his joint custody
rights and contending the move was not in the best interests of
Nina.
After a hearing on the matter, the Domestic Relations
Commissioner (the “DRC”) found that no custody determination had
been made in the original settlement agreement since it did not
specify whether custody was joint or sole.
Accordingly, the DRC
recommended that the parties share joint custody of the child.
The DRC further found that it was not in the best interests of
the child for her to be moved to Texas.
Thus, the DRC
recommended that Jeffrey be the majority custodian.
Lisa filed
exceptions to the DRC’s report, and the matter was taken under
submission by the circuit court.
On October 22, 1998, the court
issued its findings of fact, conclusions of law, and judgment.
The court specifically rejected Lisa’s argument that she was
awarded sole custody in the separation agreement.
The court
agreed with the DRC that custody had not been determined in the
separation agreement and further agreed with the DRC’s
recommendation of joint custody.
As to majority custodian, the
court found that it had no problem with Lisa being majority
custodian so long as she lived in close proximity to Jeffrey.
Thus, the court remanded the matter to the DRC for findings as to
Lisa’s intentions to move and the best interests of the child.
Upon remand, the DRC again recommended that Jeffrey be majority
custodian if Lisa persisted in her desire to move to Texas.
-3-
Lisa
again filed exceptions.
On February 12, 1999, the court upheld
the DRC’s findings and adopted his recommendations.
From this
order, Lisa now appeals.
Lisa first argues that the trial court erred in
interpreting the custody portion of the separation agreement.
The trial court found that no award of custody was made in the
agreement since it could not be determined whether custody was
joint or sole.
Although the provision as to custody in the
separation agreement does not specify whether custody is joint or
sole, we do not agree that no determination of custody was made
such that a de novo determination of custody was warranted.
Clearly, a custody determination was made in the agreement, which
was incorporated into the decree presumably after the court
examined the agreement and found that it was in the best
interests of the child.
See KRS 403.180(2) and Morell v. Morell,
291 Ky. 686, 165 S.W.2d 351 (1942).
Hence, the court’s de novo
determination of custody was in error.
For purposes of modification, we must now determine
whether the agreement granted joint or sole custody.
Lisa
maintains that the agreement gave her sole custody because it
used the term “primary custodian.”
It has been held that the
term “primary custodian” should not be used to refer to one
parent if the parents share joint custody.
App., 911 S.W.2d 612 (1995).
Aton v. Aton, Ky.
It is Lisa’s position that this
evidences the fact that she was awarded sole custody.
agree.
We do not
The agreement also clearly states that “each [parent] is
a fit and proper custodian of the parties’ child.”
-4-
Further, in
our view, Aton demonstrates that the term “primary custodian” has
been commonly used by parties and the court to refer to the
majority custodian in a joint custody situation, although the
Court in Aton strongly discourages use of the term as it relates
to joint custody.
We believe that if the parties had intended
that Lisa be awarded sole custody they could have used the term
“sole custodian.”
Thus, we adjudge that the agreement granted
joint custody of the child.
We next turn to the issue of whether the joint custody
award should be modified as a result of Lisa’s intent to move to
Texas with Nina.
It has been held that when a joint custody
award is to be modified the court must decide custody de novo “as
if no prior custody determination had been made.”
Clements, Ky. App., 780 S.W.2d 635, 637 (1989).
Erdman v.
However,
material issues relating to joint custody will not be modified
unless the court first finds an inability or bad faith refusal of
one or both of the parties to cooperate as to custody of the
child.
Chalupa v. Chalupa, Ky. App., 830 S.W.2d 391 (1992).
In Mennemeyer v. Mennemeyer, Ky. App., 887 S.W.2d 555
(1994), the parties had an agreement to share joint custody of
the child, with the mother having physical custody a majority of
the time.
When the father learned that the mother intended to
move to Florida with the child, he filed a motion to modify joint
custody to award him sole custody on the ground that the mother
intended to move to Florida.
The trial court ordered that joint
custody continue but changed physical custody from the mother to
-5-
the father.
Our Court reversed, adjudging that the threshold
requirement had not been met:
As we view the matter, in nonconsensual
modification situations involving joint
custody, such as the situation here, the
trial court may intervene to modify a
previous joint custody award only if the
court first finds that there has been an
inability or bad faith refusal of one or both
of the parties to cooperate.
Mennemeyer, 887 S.W.2d at 558.
Hence, as there was no evidence
of the parties’ inability to cooperate prior to the filing of the
motion to modify, this Court refused to allow a change in
physical custody and allowed the mother to move out of state with
the child.
Likewise, in Stinnett v. Stinnett, Ky. App., 915
S.W.2d 323 (1996), it was held that the threshold finding must be
met in order to change physical custody of the child from one
joint custody parent to the other.
In our view, Mennemyer cannot be distinguished from the
case at hand as the facts are virtually identical.
In the
present case, there was likewise no evidence that the parties
were unable to cooperate as to custody of Nina until Lisa advised
Jeffrey of her intent to move to Texas.
As in Mennemeyer, the
motion was prompted solely by Lisa’s intent to move to Texas.
Lisa cites to Brumleve v. Brumleve, Ky., 416 S.W.2d 345
(1967) wherein it was held that a sole custodian can move out of
state with the child so long as there is some plausible reason
for the move.
However, unlike the case at bar, that case
involved an award of sole custody.
Both parties urge us to adopt a reasonable test to
determine whether a joint custody parent who has physical custody
-6-
of the child a majority of the time should be allowed to move out
of state with the child.
While we agree that relocation of a
joint custody parent with a child is an issue which could benefit
from some such test, given the permanent and traumatic
implications of such a decision, we have no authority to adopt
such a test.
For the reasons stated above, the judgment of the
Nelson Circuit Court modifying the joint custody award is
reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles C. Simms, III
Bardstown, Kentucky
Regina Rapier Beckman
Bardstown, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
